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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)     NOT REPORTABLE

(2)     NOT OF INTEREST TO OTHER JUDGES

(3)     REVISED.

CASE NO.: 69367/2016

11/12/2017

In the matter between:

 

AIDA MARIA DIAS                                                                        APPLICANT

 

and

 

RUDOLPH JOHANNES VAN DER WESTHUIZEN                 FIRST RESPONDENT

BELLACUBE (PTY) LIMITED                                                    SECOND RESPONDENT

MADIBENG LOCAL MUNICIPALITY                                      THIRD RESPONDENT

 

Heard:                      7 December 2017

Delivered:                11 December 2017

JUDGMENT

 

VAN DER SCHYFF AJ

 

Introduction

[1]          The application for eviction was set down for hearing on Monday 4 December 2017. On this date advocate J Vorster appeared on behalf of the Applicant. The First Respondent appeared in person. First Respondent indicated that he had been informed 'verlede Donderdag' (that would be 30 November 2017) by his attorney, Mr Schurman, from Schurman Joubert Attorneys, that Mr. Schurman is withdrawing as attorney of record. He wished to acquire legal representation before the matter continued. First Respondent requested the application to be postponed. Counsel for the Applicant handed up a Notice of Withdrawal as attorney of record that was served on the Applicant's attorneys of record on 27 November 2017. No notice was filed in the Court file. I ordered the matter to stand down until Thursday 7 December 2017 for First Respondent to obtain legal representation to either bring a substantial postponement application or continue on the merits of the application. Counsel for the Applicant provided First Respondent with Applicant's attorneys of record's contact details to facilitate the delivery of a set of the documents pertaining to this Application to First Respondent in the event that First Respondent might have difficulties obtaining the documents from his erstwhile attorney of record.

[2]          The matter resumed on Thursday7 December 2017. Unfortunately, First Respondent was still appearing in person. He told the Court that he has obtained the services of an attorney, Mr. Riaan Roux, but that he was informed by Mr. Roux that Mr. Roux could not appear on such short notice or arrange for an advocate on such short notice to appear on his behalf. First Respondent then requested the matter to be postponed. I explained in layman's terms to First Respondent that when a party requests the Court to postpone a matter that was properly set down, he has to convince the Court that there is 'good cause· to grant the postponement. He must explain how the need for the postponement came about and that the need for the postponement was not brought about ·by his negligence or failure to act in a certain manner. In addition he has to convince the Court that he has a reasonable prospect to succeed on the merits of the Application, otherwise a postponement would be futile.

 

Principles of law pertaining to the consideration of postponement applications

[3]          It is relevant at this stage to revisit the principles governing the grant or refusal of postponement applications. In National Police Service Union and Others v Minister of Safety and Security an Others 2000 (4) SA 1110 (CC) at 1112C-F, Mokgoro J held that a postponement of a matter set down for hearing on a particular date cannot be claimed as of right. An applicant for a postponement seeks an indulgence from the court and must show that there is good cause for the postponement. The applicant must furnish a full and satisfactory explanation of the circumstances that gave rise to the application.

[4]          In light of the fact that First Respondent is unrepresented, and specifically in light of the provision in section 34 of the Constitution that 'Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a Court ... ' it is necessary to take cognisance of the decision of Harms JA in Take and Save Trading CC and Others v Standard Bank of SA Ltd 2004 (4) SA 1 (SCA} at para 3 where he said: 'A supine approach towards litigation by judicial officers is not justifiable either in terms of the fair trial requirement or in the context of resources. One of the oldest tricks in the book is the practice of some legal practitioners, whenever the shoe pinches, to withdraw from the case (and more often than not to reappear at a later stage), or of clients to terminate the mandate (more often than not at the suggestion of the practitioner), to force the court to grant a postponement because the party is then unrepresented. Judicial officers have a duty to the court system, their colleagues, the public and the parties to ensure that this abuse is curbed by, in suitable cases, refusing a postponement. Mere withdrawal by a practitioner or the mere termination of a mandate does not, contrary to popular belief, entitle a party to a postponement as of right.' This view was reiterated by the Supreme Court of Appeal when it held that '[t]he unavailability of a legal representative is not necessarily a basis for a postponement of a matter' in Magistrate M Pangarkerv Botha (446/13} [2014) ZASCA 78 (29 May 2014) para 31.

 

How did the need for the postponement arise?

[5]          The First Respondent did not provide the Court with a detailed exposition as to how it came about that he was, and still is, appearing in person. When I asked him directly why Mr. Schurman was not appearing, he said that Mr. Schurman demanded payment of R18 000.00 before he would appear. Since First Respondent felt that he had already paid Mr. Schurman a substantial amount, a dispute ensued and Mr. Schurman withdrew. According to the timeline of events as provided by the First Respondent this altercation occurred on 30 November 2017. In answer to a question by me, First Respondent stated that before this Thursday, he was in frequent contact with Mr. Schurman, and also contacted him the week before last. It is worth mentioning that the Notice of Withdrawal, dated 27 November 2017, handed up from the bar by counsel for the Applicant, prepared by the First Respondent's erstwhile attorney of record, mentions Respondent's lack of instructions as the reason for the withdrawal. This explanation differs from the explanation provided by the First Respondent when he addressed me from the bar.

[6]        First Respondent did not provide any detailed information regarding the efforts that he made since Monday to obtain legal representation, despite me prompting him several times to provide detail. He said that he ran around but could not find anybody. When asked about which firms he contacted, he could only mention one firm in Johannesburg, and Mr. Riaan Roux. When asked whether he knew why Mr. Roux did not at least assist him with preparing a formal application for postponement, he could not suggest a reason.

[7]          In considering the scant information provided by First Respondent pertaining to the reason for the postponement despite specifically being prompted to do so (in Afrikaans, it being the language that the Respondent requested the Court to use) I find that the First Respondent has failed to provide a full and satisfactory explanation of the circumstances that gave rise to the application for postponement. The application on this ground alone has to fail.

[8]          However, in an .effort to reconcile First Respondent’s predicament of being unrepresented today (albeit that it might possibly be due to his own making), with Applicant's right to have his properly set down application heard , it is reasonable not to summarily dismiss the application for postponement only because the First Respondent did not provide a proper and comprehensive explanation for the delay. I take into consideration that the First Respondent might be at a loss in the court environment. It is only fair and reasonable to consider the merits of the main application to determine the First Respondent's prospects of success in the main application. If it is evident from the papers before the Court that the First Respondent has a reasonable prospect to successfully oppose the eviction application, the prejudice that might be caused to the Applicant if a postponement is granted. can be balanced with an appropriate order as to costs.

[9]          Such an approach will resonate with the principles laid down by the Constitutional Court in Lekolwane and Another v Minister of Justice and Constitutional Development [2006] ZACC 19; 2007 (3) BCLR 280 (CC) para 17 where it held: 'The postponement of a matter set down for hearing on a particular date cannot be claimed as a right. An applicant for a postponement seeks an indulgence from the court. A postponement will not be granted, unless this Court is satisfied that it is in the interests of justice to do so. In this respect the applicant must ordinarily show that there is good cause for the postponemen.t Whether a postponement will be granted is therefore in the discretion of the court. In exercising that discretion, this Court takes into account a number of factors, including (but not limited to) whether the application has been timeously made, whether the explanation given by the applicant for postponement is full and satisfactory, whether there is prejudice to any of the parties, whether the application is opposed and the broader public interest.'

[10]       The First Respondent will likewise not be prejudiced if the merits of the matter are considered without him being represented, since the founding-, opposing,- and replying affidavits are before the Court. It is only the First Respondent's heads of argument that is lacking, and as much as heads of argument is a useful aid when a matter is decided, the facts of the dispute to be adjudicated are comprehensively set out in the affidavits.

 

The merits of the main Application

[11]       The Applicant in this matter is requesting the Court to evict First and/or Second Respondents, and any person occupying the property through them, from the said property.

[12]       It should be noted that both the Applicant and the Respondents in this matter request the Court to condone the late filing of respectively the opposing and replying affidavits. Both parties implicitly acknowledge, through the respective requests for condonation, that condonation is not there for the asking. In view of the time that has elapsed since the service of both documents neither party will be unduly prejudiced if both parties' condonation applications are granted. It should be mentioned that both parties should have put more effort into putting the reasons for their respective delays before the Court. It is however in the interests of justice that this dispute must be adjudicated. The content of all the filed affidavits are therefore considered to determine the Respondents' prospects of success in the main application.

[13]      Only the facts that are relevant to the eviction application are set out below. The principle set out in Plascon Evans Paints Ltd v Van Riebeeck Paints (Ply) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) 634E-635D is applied to determine the relevant facts on which the applicationmust be determined.

 

The facts as stated in the Applicant's founding affidavit

[14]      Applicant contends that a written agreement of sale was concluded between herself and Second Respondent. From the 'Memorandum of Agreement of Sale' attached to the Applicant’s affidavit it is apparent that Second Respondent, as purchaser, was represented by First Respondent when the written agreement was signed. The purchaser is described as 'Bellacube (Pty) Limited Registration number 2015/334536/07 herein represented by Rudolph Johannes Van Der Westhuizen in his capacity as a director duly authorised'.

[15]      Clause 14.1 of the agreement provides that '[w]here the purchaser is a company, or closed corporation, trust or other juristic person, the natural person who represents the purchaser in this agreement, shall by virtue of his signature be bound with the purchaser as surety for and co-debtor with the purchaser .. .'.

[16]      The purchase price for the property is R11 million. It is stipulated in the written agreement that the purchase amount shall be paid on transfer to the seller by bank or other approved guarantees in favour of the seller or the seller's nominee. These guarantees had to be delivered to the seller's conveyancers on or before 30 June 2016.

[17]      Clause 6.1.4 of the agreement stipulated that the parties 'specifically agree that if guarantees for the full purchase price have not been delivered on or before 30 June 2016, no agreement of tenancy shall exist thereafter and the purchaser undertakes to vacate the property within 30 days from the date of receipt of notice requesting it to do so'.

[18]      Clause 11 of the agreement determined that should the purchaser be in breach of the agreement and fail to remedy such breach within seven days of date of delivery of a written notice by the seller specifying the breach and demanding its rectification, the seller would be entitled to cancel the agreement. In the event of cancellation the seller would be entitled to either retain any monies paid by the purchaser as rouwkoop or as pre-estimated liquidated damages in respect of the prejudice suffered by the seller; or claim and recover from the purchaser damages sustained by the seller as a consequence of the cancellation occasioned by the purchaser's breach.

[19]      Despite demand, the Respondents failed to deliver guarantees for the purchase price on or before 30 June 2016. On 1 July 2016 a notice was sent to the Second Respondent demanding that the property be vacated. On 4 August 2016 the Applicant informed Second Respondent through a written letter that she cancels the agreement due to Second Respondents failure to rectify the breach.

[20]      The Applicant contends in addition that the Second Respondent was in arrears with occupational rent payments in the amount of R40 000.00 on 21 August 2016.

[21]      Applicant contends that since the agreement between Applicant and Second Respondent has been cancelled, First Respondent is in unlawful occupation of the property.

[22]      Applicant stated in her affidavit that her attorneys of record would see to it that the provisions of section 4(2) of the Prevention of Illegal Eviction from and Unlawful Occupation of land Act, No. 19 of 1998 [PIE Act] are adhered to. It is clear from the content of the Court file that the provisions of section 4(2) of the PIE Act were adhered to in that a written and effective notice of the proceedings was served on the First and Second Respondents respectively on 5 October 2016.

 

The facts as stated in the First Respondent's opposing affidavit

[23]       First Respondent deposed to the opposing affidavit in opposition to the Applicant's eviction application against himself and Second Respondent.

[24]       He states: 'The affidavit is a/so deposed to on behalf of the Second Respondent, in as much as the current de facto position represents the factual position that I represent the said company and hold an interest in the company. From the content of this affidavit my de facto interest in the company will become clear.' The background provided in paragraphs 6- 15 of First Respondent's opposing affidavit contextualises this submission.

[25]       First Respondent explains that he decided to relocate from Knysna to Pretoria for business reasons in 2015. He saw a property advertised on Property 24. The property was advertised as 'unfinished' since the building work on the inside of the house still had to be completed. He had no problem to finish the dwelling on the property at his own cost. His negotiations were throughout with the husband of the Applicant.

[26]       It was First Respondent's intention to purchase the property in the name of a company and not in his own name. First Respondent avers that the Applicant's husband understood that it might take some time to secure the 'vessel' needed to conclude the sale. Therefore First Respondent and Applicant's husband agreed that First Respondent would lease the property for a period they thought would be sufficient to finalise the uncompleted building work and acquire a company for the purchase of the property. Due to the fact that it was foreseen that the period might exceed the initial estimated period of 9 months, it was agreed that should the initial period be exceeded, an escalated amount of rental would be paid to the seller. Therefore clause 6.1.3 of the agreement determined that 'The occupational rental of R23, 000.00 (Twenty Three Thousand Rand) shall escalate to R40, 000.00 (Forty Thousand Rand) (inclusive of VAT) per month if the purchase price is not paid or guarantees for the purchase price is not timeously received as set out in paragraph 4 above.'

[27]       Through an attorney known to both the Applicant's husband and the First Respondent the agreement to purchase the property was drafted. The attorney also indicated that he could assist First Respondent with the purchase of a 'shelf company'. This would expedite things as it would be a long and cumbersome process to register a company. First Respondent was invoiced by the attorney for 'work done' and was under the impression that he would be the director and shareholder of the Second Respondent within a matter of weeks.

[28]      The attorney drafted the agreement of sale and on 28 September 2015 First Respondent signed the agreement as duly authorised representative of Second Respondent. It is at this stage that he became aware of the fact that the seller of the property was indeed the wife of the person with whom he engaged in negotiations. On his version, First Respondent was told by the attorney that he could sign as representative of the Second Respondent as it was only a matter of time before he would be the director and shareholder of Second Respondent. {It is imperative to note at this stage that despite First Respondent's intentions, the factual reality is that First Respondent was neither a shareholder, nor a director of Second Respondent at the time that the written agreement was signed by First Respondent on 28 September 2015. The legal consequences of this factual reality is dealt with below).

[29]      First Respondent occupied the property during December 2015 and avers that he spent around R641 000.00 to complete the building. He also paid R167 000.00 to the Applicant for rental.

[30]      First Respondent acknowledges that he started to receive letters demanding payment of outstanding rent and other expenses from the attorney who dealt with the transaction. When he, in turn enquired regarding the acquisition of his interest in the Second Respondent he was placated and told not to worry. At the time of deposing to the opposing affidavit on 2 March 2016, he had still not yet obtained an interest in the Second Respondent.

[31]      First Respondent confirms his intention to pay rental but despite tendering the payment of rent it was refused by the Applicant. First Respondent avers that the failure to provide the required guarantees timeously is not due to any negligence on his side since his bank cannot issue the guarantees until he is listed as a director of the purchasing company.

[32]           First Respondent avers that the property is his primary residence and that he spent a large amount of capital in finalising the building works. He additionally claims that the Applicant is in any event not in a position to effect transfer of the property.

 

The Applicant's reply

[33]           In reply Applicant reiterates that the agreement of sale has been cancelled, and denies any knowledge pertaining to the discussion between First Respondent and his legal representatives. Applicant also refers to clause 2.5 of the agreement wherein the purchaser (Second Respondent) waives any lien that it may have obtained by virtue of performing the improvements to the dwelling should the contract be cancelled in the event of non­ performance by the purchaser.

 

Further development explained during argument

[34]           During oral argument, Applicant's counsel handed up a more recent SearchWorks result. According to the search information the search was done on 31 March 2017. Contrary to the results obtained during a similar search that was done on 31 January 2017, which search result was attached to First Respondent's opposing affidavit, the latest search result indicates that the First Respondent is 'now' listed as the active director of the Second Respondent. Although the date from which First Respondent is appointed as active director of Second Respondent is indicated as 15/09/2015 on the latest SearchWorks result, it is evident from the facts set out in the affidavits that First Respondent acquired an interest in the Second Respondent after 31 January 2017. That is long after the contract was concluded on behalf of Second Respondent. In light of the fact that First Respondent stated in the opposing affidavit dated 2 March 2016 that he has not yet been able to provide the guarantees stipulated in the contract because he has not yet acquired 'the registered company’ it is evident that First Respondent's acquisition of an interest in Second Respondent and his appointment as active director of Second Respondent was post-dated. The First Respondent could not give any indication as to the date that he became the active director of the Second Respondent.

 

The question before the Court

[35]           The first question that needs to be answered is whether First and/ or Second Respondent are unlawfully occupying Applicant's property. Since First Respondent and his family are factually occupying the property, reference is only made to First Respondent as occupier. Where the context requires it reference to First Respondent includes Second Respondent. It thus needs to be established whether there is any legal basis for First Respondent's occupation.

[36]           It is apparent from First Respondent's opposing affidavit that at the time that the contract was concluded, he did not hold any interest in Bellacube (Pty) Ltd. He was neither a director nor a shareholder thereof. This is the factual reality, even if it is considered that First Respondent’s 'appointment’ as active director was post-dated at an unknown date to precede the conclusion of the agreement. If no dispute arose between the parties, this manoeuvre would be inconsequential. In the current circumstances it is important.

[37]      Bellacube (Pty) Ltd is a distinct separate legal persona and although First Respondent had the best intentions to acquire an interest in the company, this interest has not been acquired before the agreement was concluded. Despite the fact that it is stated in the Applicant's heads of argument that First Respondent's authority to conclude the contract is not disputed, it remains an undisputed fact that at the time of entering into the written sale agreement, First Respondent was not the duly appointed director of Second Respondent. No submission is made by either Applicant or First Respondent that First Respondent obtained the written authorisation to sign the written agreement of sale on behalf of Second Respondent.

[38]       The importance of this reality is evident in light of the fact that the agreement between the Applicant and Second Respondent was purported to be a sale of land. As such, the transaction is subject to the provisions of the Alienation of Land Act, No. 68 of 1981. Section 2 prescribes the formalities in respect of alienation of land:

(1)      No alienation of land after the commencement of this section shall, subject to the provisions of section 28, be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority.

(2)     The provisions of subsection (1) relating to signature by the agent of a party acting on the written authority of the party, shall not derogate from the provisions of any law relating to the making of a contract in writing by a person professing to act as agent or trustee for a company not yet formed, incorporated or registered.

(2A) The deed of alienation shall contain the right of a purchaser or prospective purchaser to revoke the offer or terminate the deed of alienation in terms of section 29A.

[39]      It must be noted at this stage that counsel for the Applicant argued that this is inconsequential in light of the fact that neither of the parties relies on this point in their arguments. However, since the formalities in respect of the alienation of land are set out in legislation the Court is obliged to take cognisance thereof, even if mero motu.

[40]       The undisputed facts before me indicate that First Respondent who acted as the agent of the Second Respondent when the agreement was signed, did not have the written authority of the Second Respondent to conclude the agreement on its behalf. Since the Second Respondent has already been in existence when the agreement was concluded, in that it was already a registered company, section 2(2) of the Alienation of Land Act does not apply.

[41]       I accordingly find that the formal agreement of sale does not comply with the requirements of section 2(1) of Act 68 of 1981. As a result the agreement is ab initio void. A logical consequence of this finding is that First Respondent's occupation of the property is unlawful in that there is no valid legal ground for such occupation.

[42]       If I am however wrong in this regard in that, as argued by counsel for the Applicant.

•        First Respondent's signature of the contract was, or could be, ratified when First Respondent acquired the necessary interest in Second Respondent and became an active director of Second Respondent;

•         First Respondent did not need the written authorisation when the contract was signed due to the fact that he would have acquired the sole interest in the company;

•         The de facto situation was that First Respondent represented Second Respondent; or

•         First Respondent is to be regarded as a purchaser in own right due to the provision of clause 14.1 of the agreement mentioned above in paragraph [15],

it needs to be considered whether First Respondent has a right to occupy the property in terms of the written agreement if the agreement is deemed to be valid.

 

[43]       It is common cause that the time to deliver the guarantees as set out in the written agreement has lapsed. Despite clause 6.1.3 of the contract providing for an escalation of occupational rent in the event that guarantees are not received timeously, clause 6.1.4 clearly stipulates that if guarantees have not been delivered on or before 30 June 2016, 'no agreement of tenancy shall exist thereafter and the purchaser undertakes to vacate the property within 30 days from the date of receipt of notice requesting it to do so'. This notice was dated 1 July 2016 and delivered by e-mail to the Second respondent. In a letter dated 4 August 2016 the Applicant cancelled the agreement. First Respondent does not deny in the opposing affidavit that these notices were received. First Respondent however claims that guarantees could not be delivered due to the fact that he had not yet acquired an interest in the Second Respondent. It is exactly this dilemma that prompted me to find that the contract is ab initio void since First Respondent could not act on behalf of Second Respondent when the agreement was concluded. If it is however possible (and I do not find that it is) that First Respondent's interest in Second Respondent can be back-dated to precede the signing of the agreement, he now faces the dilemma that guarantees were not delivered timeously and the contract was duly cancelled. Whether the responsible attorney was negligent or delayed the acquisition of First Respondent's interest in Second Respondent which delay subsequently caused the dilemma First Respondent is now facing, is not to be decided in the current application. The only question that the Court must answer, is whether there is a legal ground for First Respondent 's occupation of the Applicant's property. The answer to that question on both scenario's considered, is no.

[44]       I accordingly find that the Respondents failed to disclose a defence and the application for postponement is dismissed.

[45]     The next question that needs to be considered is whether it would be just and equitable to evict First Respondent from the said property. It is evident from the purchase price as well as the location of the property concerned that the First Respondent does not fall within the category "poorest of the poor," or any other economically vulnerable group. As unlawful occupier First Respondent enjoys the benefits of the PIE Act although the statute was arguably not primarily intended to benefit members of affluent communities occupying luxurious premises. In Ndlovu v Ngcobo, Bekker and Another v Jika [2002) 4 All SA 384 (SCA) para 17 it was stated that the affluent tenant will be entitled to the somewhat 'cumbersome procedural advantages of PIE to the annoyance of the landlord. In circumstances where section 4(7) of PIE applies one may safely assume that the imagined affluent person would not wish to be relocated to vacant land possessed by a local authority, and that this added consideration would not be apposite. The prescribed circumstances, namely the rights and needs of the elderly, children, disabled persons and households headed by women, will not arise. What relevant circumstances would there otherwise be save that the applicant is the owner, that the lease has come to an end and that the tenant is holding over?'

[46]     Except for stating that the property is the primary residence of the First Respondent, no other information is contained in First Respondent's opposing affidavit that discloses circumstances that would render the eviction unjust and inequitable. When asked by the Court, First Respondent stated that the dwelling is occupied by himself, his wife, his son of 16 and a daughter (20) who visits during weekends and holidays. When asked directly whether he would be able to acquire alternative accommodation the First Respondent did not deny that he would be able to, but evaded to answer the question.

[47]     After careful consideration of the facts it is evident that Applicant is the owner of the property. No valid legal ground exist in terms whereof the First or Second Respondent can claim occupation of the said premises. First Respondent is an occupational tenant in terms of a void agreement of sale that is holding over. The Applicant met the procedural requirements set out in section 4 of the PIE Act. (see Wormald and Others v Kambule [2005) 4 All SA 629 (SCA) para 20.)

[48]       In determining the date on which the property must be vacated I consider both the Applicant's interest in her property as well as the fact that we are now in the midst of the Christmas season and year end.

ORDER:

IT IS THUS ORDERED THAT:

1.       The First and Second Respondents and whoever occupies the property known as [….] (hereinafter referred to as 'the property') through them be evicted;

2.       The First and Second Respondents and whoever occupies the property through them must vacate the aforementioned property within 30 days from the date of this Order or 10 January 2018, whichever date is the latest; the date being the just and equitable date for eviction;

3.       In the event that the First and Second Respondents and whoever occupies the property through them do not vacate the property by the date determined in paragraph 2 hereof the Sherriff of the High Court, or his deputy, is authorised to enforce the eviction and may be accompanied by the South African Police Service, if necessary, within 10 days after the date referred to in paragraph 2 hereof;

4.       First and Second Respondents to pay the costs of the eviction application jointly and severally, the one to pay the other to be absolved.

 

 

 

E VAN DER SCHYFF

Acting Judge of the High Court

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